Court pays 'lip service' to the fight for equality
Johannesburg - The Equality Court sitting at the Joburg Magistrate’s Court last year achieved justice for a security guard who was called a monkey and a k****r when he told visitors to the hospital to return during visiting hours.
But since that case was heard, this one equality court of 28 in Gauteng, has turned into a forlorn site. No other case has been heard there since. The doors of courtroom 31 are closed, but through the windows one can see dust collecting on its benches.
Those in the know will tell you that at one point it was even used as a storeroom for files. And the court roll? “What court roll?” ask laughing officials who don’t want to be named. They say it’s non-existent for the next month, at least.
Equality courts were set up after the Promotion of Equality and Prevention of Unfair Discrimination Act was promulgated in 2000. The courts are meant to be a key instrument in addressing racism issues.
In many respects, the courts would have been the ideal institution to tackle the recent racist remarks of KwaZulu-Natal estate agent Penny Sparrow and government employee Velaphi Khumalo.
Used effectively, the court could drive home the message that there are consequences for racist actions and words.
Officials at the court, who wished to remain anonymous, acknowledge that the Equality Court is underutilised despite the Department of Justice and Constitutional Development’s claim that it is still relevant and serves a purpose.
Officials say part of the problem is that there is often little understanding by the public of how the court works.
When the processes are complicated they exclude people who don’t have access to legal help to achieve justice through this channel.
And officials say that many cases don’t see the light of day because of insufficient evidence. “You’ll struggle to find cases here. You don’t see them any more,” a senior magistrate says while his colleague points out that there is a lack of clear direction as to how the public goes about lodging complaints.
The cases are often misdirected. In many instances, they are matters that should be heard in the Labour Court as they are related to issues of unfair dismissal or workplace discrimination.
The Equality Court also receives cases that are referred to them by the Human Rights Commission.
A court administrator, who assisted *Manelisi, the Helen Joseph Hospital security guard who won his hate-speech case and received an apology from the perpetrator, says the process can become complex, which can put people off.
He says lodging cases often involves having to put together witness statements and other evidence.
He adds that before he stepped in, Manelisi’s case faced the prospect of being thrown out. He had to help him write a solid affidavit and obtain proof that would substantiate his claim, such as witness accounts.
“Some accused deny allegations, which means the sheriff of the court has to be given time to find people to testify before they issue a summons.” He says one of the clear types of cases that can be dealt with by the Equality Court arises during road-rage incidents.
“Motorists may have the right to be angry but shouting at and calling each ohter names amounts to hate speech.
“We are not saying people shouldn’t get angry or fight over issues but when it does happen it must be done within the law.” He says the Equality Court clearly stipulates that a person cannot call anyone a K*****. “It’s in the constitution.” The courts can rule that someone pay a fine, damages, make a formal apology or undergo a programme to address their behaviour.
These courts, he says, also deal with issues of dignity such as people being discriminated against for their positive HIV-status or purely on how they look.
“Many people don’t know that they have the right to lodge complaints and don’t have to suffer in silence and take the abuse. These courts are there for a reason,” he says.
Some of the cases heard at other Equality Courts across the country involve a Cape Town domestic worker who received R50â€…000 in damages after her employer’s boyfriend told her that she was “a pathetic k****r and that he hated k*****s, hated her and that k*****s had stolen our land”.
In another case, Christian owners of a Wolseley guest house in the Western Cape, who claimed their religious beliefs prevented them from accommodating a same-sex couple were ordered by the court to apologise for their behaviour.
Justice and Constitutional Development spokesman Mthunzi Mhaga says: “South African society is marred by its legacy of inequality. Therefore Equality Courts and the training of presiding officers and court personnel becomes futile if the public is not aware of the courts and if they are unwilling to utilise them.”
Isaac Mangena, spokesman for the SA Human Rights Commission concurs, saying the courts have the potential to be effective but are severely underutilised.
“There are low rates of cases being finalised with numerous cases being withdrawn or referred to alternative forums. The courts can be improved by raising awareness and making the courts and their procedures more accessible to people.”
Mangena says while courts can criminalise specific acts or behaviours such as racist, hate speech, they don’t address the attitudes. He says an amendment bill to the Promotion of Equality and Prevention of Unfair Discrimination Act had been discussed and needs to be made available for public comment.